Research On The Criminalization Of Traffic Hijacking

Traffic hijacking is a new criminal phenomenon in the process of the development of digital society." Domain Name Resolution " traffic hijacking is a type of the common traffic hijacking behaviors,mainly manifested as DNS hijacking,also known as domain name hijacking,which refers to hackers use some skills to hijack the DNS server to obtain the resolution control of domain names,then modify the resolution results of the domain name.When users visit the network domain name,they browse the wrong web page,resulting in the loss of network operators’ traffic and the threatens of users’ personal legitimate rights and interests.In this regard,traditional civil and commercial legal behaviors cannot achieve the social effect of legal purposes.Therefore we need to try to regulate from the level of criminal law.The Guiding Case No.102 issued by the Supreme People’s Court has provided the keynote for the qualitative determination of DNS traffic hijacking in judicial practice.However,due to the constraints of technical cognition,such as the lack of understanding of the technical principle,type characteristics and essence of traffic hijacking,some cases have disputes and biased judgment results on applicable charges.The main disagreement centered on the precise application of the crime of damaging computer information system and the crime of illegally controlling computer information.The same hijacking behavior is likely to lead to different criminal results,so it is difficult to determine what charges should be used for DNS hijacking behavior.This is mainly due to the confusion caused by the difference between the simplified and summarized provisions of legislative provisions and the practical understanding.By comparing the norms and combining with the analysis of practical cases,we can clearly identify the object of behavior,the elements of behavior and the types of behavior in the legal provisions of the above two crimes,so there are essential differences between the two in fact."Illegal control" refers to the behavior that the actor enters the computer information system by illegal means to control and use it exclusively,infringing the confidentiality and controllability of the system."Sabotage" refers to the behavior that damages the normal operation,integrity and availability of computer information system by means of technology through legal behavior types.The above differences can effectively solve the qualitative behavior of DNS traffic hijacking and the application of penalty problems,but in some special cases there are still imaginary conjunctions which need special treatment.Although most cases in practice hold that the crime of damaging computer information system should be applied,they ignore the evaluation of the criminal purpose of the perpetrator.In fact,the criminal purpose of the perpetrator is not to destroy the security of the computing or information system or disrupt the order of network management,but to sell the hijacked website traffic for profit.Selling the hijacked traffic and DNS hijacking are the relationship between the acts of purpose and means.Therefore,some scholars believe that DNS hijacking should be a crime of property infringement.The perpetrator may be convicted and punished with the crimes of theft,sabotage of production and business operation and fraud.Among them,the crime of theft needs to face the problem that the website traffic can be evaluated as the object of protection of property crime,while the crime of damaging production and business needs to improve the type interpretation of the destructive behavior of "other methods" at the level of the Internet.The application of the crime of fraud is mainly aimed at the situation where the perpetrator destroys the computer information system through hijacking and then commits fraud.To sum up,the application of traffic hijacking to theft has theoretical feasibility but lacks practical basis,and the result of DNS hijacking cannot constitute the crime of damaging production and operation because it cannot actually control the production and operation,while the case that the fraud through DNS hijacking constitutes the crime of implicated crime because it conforms to the logic of means act and purpose act has evidence to follow in both theory and practice.Considering the infringement of the interests of criminal law protection law,the purpose of crime,the nature of behavior of DNS traffic hijacking,the advantages and disadvantages of regulating computer crimes in the reality of criminal law,and combining with the fact determination of specific cases in judicial practice,traffic hijacking should form a type conviction model with the regulation thinking of computer crimes as the main,and the regulation thinking of property crimes as the secondary.When the crime of destroying computer information system involves the absorption or imaginary conjoint of other charges of computer crime,it should be convicted and sentenced according to the corresponding punishment principle.When the computer crime concurrence with theft and other property crimes and other property crimes are carried out through the computer crime,the judicial organs should grasp these two basic points and deal with them according to the principle of punishment of imaginary concurrence and implicated crime respectively.